01a03575
08-25-2000
Sherri D. Choice, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Sherri D. Choice v. Department of Veterans Affairs
01A03575
August 25, 2000
.
Sherri D. Choice,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A03575
Agency No. 2001233
DECISION
Sherri D. Choice (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 21, 2000 dismissing her
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq.<1> In her complaint, complainant alleged that she was
subjected to harassment on the basis of race (Black) when:
on November 5, 1999, she was assaulted by the Nurse Instructor; and
on November 8 she was advised that she was the subject of a VA police
investigation.
The agency dismissed the complaint pursuant to EEOC Regulation 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(2)), for failing to comply with the required
time limits. Specifically, the agency noted that complainant received
the notice of right to file a formal complaint on December 18, 1999,
but failed to file a formal complaint until January 6, 2000, several
days past the 15 day time limit.
Commission regulations require that formal complaints be filed within
15 days of receipt of the notice of right to file a formal complaint.
See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.106(b)). This time limit, like others,
is subject to waiver, estoppel, and equitable tolling. See 29 C.F.R. �
1614.604(c).
In the case at hand, complainant failed to establish that the time limit
should be waived. She explained that she missed the 15 day time limit
because she was very stressed by the events and the police investigation.
She also noted that she was waiting to receive the agency's investigative
report,<2> so that she could send it with her complaint. These
explanations are insufficient to justify a waiver of the time limit.
Complainant also referred to various health problems she was having
during the time in question, perhaps intending to argue that she was
incapacitated. In cases involving physical or mental health difficulties,
the Commission has consistently held that an extension is warranted
only where an individual is so incapacitated by her condition that
she is unable to meet the regulatory time limits. See Crear v. United
States Postal Service, EEOC Request No. 05920700 (October 29, 1992);
Weinberger v. Department of the Army, EEOC Request No. 05920040 (February
21, 1992); Hickman v. Department of the Navy, EEOC Request No. 05910707
(September 30, 1991); Johnson v. Department of Health and Human Services,
EEOC Request No. 05900873 (October 5, 1990); and Zelmer v. United States
Postal Service, EEOC Request No. 05890164 (March 8, 1989). This does
not apply in the case at hand, as complainant acknowledged that she let
the 15 days �slip up on [her]� because of stress and her desire to delay
filing her complaint until the VA police investigation was over.
Accordingly, after a careful review of the record, we find that the
agency's dismissal of the complaint for failing to comply with applicable
time requirements was proper. The FAD is therefore AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 25, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 It is not clear what report complainant is referring to, although it
appears that she believed that the VA police investigation would lead
to a report.